Smith v Business Enterprise Centre - Mersey Inc
[1999] TASSC 59
•31 May 1999
[1999] TASSC 59
CITATION: Smith v Business Enterprise Centre - Mersey Inc [1999] TASSC 59
PARTIES: SMITH, Gregory James
v
BUSINESS ENTERPRISE CENTRE - MERSEY INC
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 19/1998
DELIVERED ON: 31 May 1999
DELIVERED AT: Hobart
HEARING DATES: 20 April 1999
JUDGMENT OF: Wright J
CATCHWORDS:
Workers Compensation - Entitlement to and liability for compensation - Who is a "worker" - Contract of service or independent contractor - Generally - Whether open to Tribunal to find that a person served under a contract of service - Commonwealth Government training program - Work experience participant.
Workers Rehabilitation and Compensation Act1988 (Tas), s3(1).
TGIO v McLeod B37/1991; Laird v Shand B55/1996, followed.
Halliday v Nevill (1984) 155 CLR 1, applied.
Porton v Central (Unemployed) Body for London [1909] 1 KB 173; Gilroy v Mackie (1909) 2 BWCC 269; MacGillivray v The Northern Counties Institute for the Blind (1911) 48 SLR 811; Hopes v Work Cover Corporation [1997] SAWCT 5, considered.
Aust Dig Workers Compensation [87]
REPRESENTATION:
Counsel:
Appellant: C J Bartlett
Respondent: T J Ellis
Nominal Insurer: P A Griffits
Solicitors:
Appellant: Bartletts
Respondent: Levis Stace & Cooper
Nominal Insurer: Griffits & Jackson
Judgment Number: [1999] TASSC 59
Number of Paragraphs: 27
Serial No 59/1999
File No LCA 19/1998
GREGORY JAMES SMITH v BUSINESS ENTERPRISE CENTRE - MERSEY
REASONS FOR JUDGMENT WRIGHT J
31 May 1999
This is an appeal pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s63. The appellant claimed compensation from the respondent in respect of incapacitating dermatitis which he contracted whilst working for Tas Villas at a building site. At the time the appellant was a participant in a training program instituted by the Commonwealth Government, known as "New Work Opportunity". Pursuant to this scheme, the respondent had entered into an agreement with the Commonwealth "to act as a Sponsor under the New Work Opportunity program for the Business Grow Project".
This agreement provided (inter alia) that the respondent would carry out the following services:
(a) provide training and work experience placements for a period of 26 weeks for 10 Participants referred by Case Managers through the CES;
(b) arrange on- and/or off-the-job training for Participants involved in the Project and ensure that training providers have appropriate skills and qualifications;
(c) ensure Participants are appropriately supervised and that occupational health and safety practices are followed;
(d) ensure that New Work Opportunities work experience and training placements do not result in the displacement of existing or potential workers or volunteers;
(e) provide advice to the Supervisor on the effectiveness of the Participants' placement on the Project;
(f) pay training providers and purchase equipment or materials required by Participants as provided in the Full Project Application at Annexure B3;
(g) pay the Training Allowance to Participants at the same time and in the same manner as payment is made to employees;
(h) pay the Fuel Assistance Allowance to eligible Participants at the same time that the Training Allowance is paid and maintain a record of claims lodged by and payments made to Participants using the form Record of Payments Made for Fuel Assistance (see Annexure B8);
(i) provide financial and non-financial reports to the Commonwealth as specified in the Program Guidelines and Clause 6 of this Attachment;
(j) assist with program promotion;
(k) participate in Departmental reviews and assessments;
(1) prepare and provide appropriate accreditation, certification or references to Participants at the end of the placement in a form approved by the Department; and
(m) during the work experience and training placement, provide placement support with emphasis on job search assistance including:
(i)how to deal with employers when job hunting,
(ii)writing job applications,
(iii)how to find more job opportunities, and
(iv)job interviews - helpful tips and practices."
(Clause 2.1, attachment B).
The agreement also required the respondent to:
"… effect and maintain the following insurance cover during the term of the Contract:
(a) insurance of its Participants under the provisions of Workers Compensation laws in the applicable State or Territory or Injury Insurance if Workers Compensation does not apply; and
(b) public liability insurance for such reasonable amount, not being less than 5 million dollars, as required by the Commonwealth against claims by third parties for bodily injuries and property damage resulting from the provision of the Services."
(Clause 7.1, attachment B).
After entering into the agreement with the Commonwealth, the respondent entered into a "Sponsor/participant agreement" with the appellant and as a consequence of this placed him at a work site operated by Tas Villas/Denmat Pty Ltd. Payments throughout the period were made to the appellant by the respondent and a group certificate was issued at the end of the financial year identifying the respondent as the employer. Throughout the period the appellant filled in time sheets which were submitted to the respondent.
The learned Commissioner whose determination is now in question, summarised additional evidence given during the proceedings before him when publishing his reasons on 28 August 1998. There has been no suggestion that this summary or any of the findings of fact made by the Commissioner were erroneous, so I will set out below those matters which he discussed which appear to me to be relevant to the present appeal.
His Honour referred to the appellant as "the worker" and to the respondent as "BEC". He said:
"The worker gave evidence of having been employed throughout his working career as a builders labourer and having been referred to BEC by the Commonwealth Employment Service in order to take part in the training programme. He says he was sent to a meeting attended by Mr Ross Payne from Tas Villas and Ms Christine Bullen from BEC at which details of his work duties and consequent arrangements were explained to him. He says at that time it was outlined to him that his work would involve demolishing the interior of an old hospital which was being redeveloped as holiday units and that, during this period he would be assisting tradesmen and thereby increasing his building skill level. He says that at this meeting he was told by Ms Bullen that BEC were his employer and that they would pay him $630.00 per fortnight gross and that tax would be deducted from that payment. He says that he was informed that Mr Payne would give appropriate directions on site as to the work and duties to be performed but any problems as to the work or matters arising therefrom were to be referred to Ms Bullen. He says the agreement between himself and BEC was filled out at this meeting by Ms Bullen and he signed it (W2). He says he was required to complete time sheets and these were to be verified by Mr Payne before being submitted to BEC. He explained the entries in the time sheets relating to either time on the building site or away from the building site either on another training course or sick leave or for job search purposes which was permitted. He says his income was paid each fortnight into his bank account by BEC. He says that initially BEC supplied boots to he [sic] and fellow employees who commenced on site but he was required to provide his own overalls and helmet. He says that after a period of time on site and after representations were made, BEC provided helmets and ear protection for he [sic] and his fellow workers. He says that Ms Bullen came on site from time to time to check on the workers and she at all times advised them that any problems on site were to be raised with her. He says that actual work instructions and supervision on site was provided by Mr Payne or his delegate identified as 'Darren'. He says at times Ms Bullen would counsel them as to not completing the duties set for them and he presumed that complaints would be made by Mr Payne to Ms Bullen in this regard."
The learned Commissioner then described how the appellant contracted dermatitis and sought medical help. He continued:
"He says that he received a medical certificate after visiting his doctor on 22 April 1996 and that he gave this certificate to Ms Bullen at the work site. He says that when he attempted to deliver subsequent certificates to Ms Bullen she refused to accept same and told him there was no workers compensation applicable in this case. He says that this was contrary to his understanding as on a previous occasion he had suffered a cut to his head and was absent from work for a period of time, provided a workers compensation medical certificate (W16) and was paid for his absence. He says that when he submitted his last time sheet, being for the period up until 1 May 1996 he inserted in that time sheet that he was absent on workers compensation and he says that he was paid for those days notwithstanding that he was not at work from 22 April through until 1 May 1996.
…
He says that he was told that the power to hire and fire was exercised by Ms Bullen and that he considered that he had been hired out by BEC to the company operated by Mr Payne to do the building work on his behalf. He says that throughout his engagement Ms Bullen attended to all disciplinary matters such as providing warnings to workers.
In cross-examination by Mr K Levis, for BEC, he says that the initial discussions with Ms Bullen and Mr Payne referred to the payment of a training wage and he agreed there was no reference to salary. He also agreed that the relevant documents refer to payments to be in the form of a training allowance. He also agreed that he understood that he was taking part in a training programme and that it was for a limited period of 26 weeks. He agreed that Mr Payne provided the tools on site together with disposable paper masks, eye goggles and gloves and that BEC provided safety boots, hard hats and ear plugs. He also agreed that Ms Bullen provided no direction of how to do the work and that she never discussed building methods with him. He agreed that day to day direction was provided by Mr Payne or Darren. He says that Ms Bullen would visit the site approximately once per fortnight on average and that each visit would be for approximately 45 minutes. He agreed that there was a previous incident involving a fellow worker, Gary Leonard, where he broke his finger and that at that time he was advised that he was not covered by workers compensation but rather only for death and disability insurance. He agreed that the benefit of his work flowed to Mr Payne's company and not to BEC.
…
He says that when he first advised Ms Bullen on 12 April 1996 of his condition and complained as to the exposure to the chemicals and the lack of protective clothing given the safety warning on the packaging, Ms Bullen at that time instructed him to continue the worker [sic] otherwise he would be dismissed and that such dismissal could have jeopardised his entitlement to unemployment benefits."
The learned Commissioner reviewed the evidence of Ms Bullen, saying:
"Ms C Bullen gave evidence on behalf of BEC and described that BEC had entered into labour market programmes with the Commonwealth Government in which it placed long term unemployed persons in work situations where they were able to upgrade their skills or to undergo retraining for employment purposes. She says that the project in which the worker was engaged was developed by herself and Mr Payne and approved by the Commonwealth Employment Service and ten persons were referred by the Commonwealth Employment Service, all of whom were interviewed and three were chosen, one being the worker. She says that it was explained to the worker that he was engaged in a work experience programme, that BEC were the sponsor and that Mr Payne's company was the host sponsor and in return for the duties performed by the worker he would receive a training allowance. She agreed that time sheets were required to be submitted by the worker in order that he would receive his allowance. She says that at no time did she describe BEC as the employer, she says that they sponsored persons they did not employ them. She described that at approximately 8 days prior to the end of the 26 week placement she received a phone call from the worker that there were 'scab' workers taking his work at the site and that he was not going back. She says that in this conversation he also raised a concern that the substance he had been using was carcinogenic and accordingly she went to the site to investigate this claim. She says that when she arrived on site there was a union representative there and there were discussions about his concern that the project was denying employment opportunities. She says the worker was not on site at that time. She says she recalls the worker did present a medical certificate and also a workers compensation claim but she explained to him that it was not an appropriate situation for workers compensation as he was not a worker.
In cross-examination by counsel for the worker, Mr Bartlett, she said that her knowledge as to the arrangements of the work placement were set out in 'guidelines' document. She says that those guidelines stated that workers compensation or disability insurance was to be provided in respect of the participants but said that all insurance details would have been carried out by a Mr Keep, who was the manager of BEC. She says that she believed that workers compensation was not applicable and that is why disability insurance was taken out. She conceded that the worker had, by the end of his contract, exhausted a sick leave entitlement of 10 days. She agreed that BEC provided safety boots, overalls and ear plugs and that she on occasions had to remind the workers to use the safety equipment that had been provided. She conceded that BEC deducted income tax and superannuation from the allowance payable to the worker. She also explained that the Commonwealth Government provided a grant to BEC to find the placement of 10 participants and that BEC received the training allowance for those participants from the Commonwealth together with other expenses. She could not recall occasions when Mr Payne may have complained to her about work performance of the participants but she did note that from time to time she had directed and advised the worker as to the performance of his work in order to keep him focused on his job. She agreed that BEC had the authority to terminate the agreement with a participant and that it would do so where that person did not comply with any directions or instructions that may have been given. She confirmed that this could not be carried out by Mr Payne and the right to terminate or relocate a participant resided only with BEC. She says that she believed there was a disability and death insurance policy in force but conceded that a claim form or other details of same were not provided to the worker when he presented his claim for compensation. She also conceded that she was not aware of the actual training that was provided on site to the participants. She denied the worker raised with her his concerns about dermatitis until the claim for compensation was made. She says that the initial advice from the worker was his concern that the product was carcinogenic. She stated that she believed that Mr Payne may have paid a fee or donation to BEC in respect of the project but she was unaware of the details. She stated that BEC received a fee from the Commonwealth for making the industrial placements and that the host sponsor was obliged to pay them a fee or alternatively provide training at no cost."
The appellant applied to the Tribunal seeking a determination of his entitlement to benefits under the Act based upon a claimed total incapacity from 22 April 1996 to 10 January 1997 and a partial incapacity thereafter, together with medical and other expenses.
The sponsor/participant agreement entered into between the appellant and respondent contained the following provisions:
"Both signatories to this Agreement accept the following terms and conditions for the New Work Opportunities placement.
1 Period of placement
The work experience and training placement shall commence on 7/11/95 and continue until the project is completed on 3/5/96 . The total period of placement in the program is for 26 weeks.
Participants will be involved for 38 hrs per week. Public holidays are included in the 26 week project.
2 Training allowance arrangements
The rate of allowance to be paid to the participant has been calculated by the referring CES. The amount, including tax is
$ 3.5 per week.
The sponsor is required to deduct the income tax payments under the PAYE system and provide a Group Certificate to the participant.
If no existing arrangements apply, the sponsor must implement an acceptable and accountable process to pay participants their training allowance on a fortnightly basis.
3 Active employment assistance
Sponsors are required to provide active employment assistance to participants during the project to ensure that participant's chances of achieving permanent employment following participation in the program are improved.
4 Leave arrangements
Participants can take a maximum of 10 days leave during the life of the project without a reduction in allowance. This leave can be any combination of sick or special leave that meets the participant's requirements. Any extra leave will affect the amount of training allowance received by the participant.
5 Training
If there is an off-the-job training component as part of the project, the sponsor is required to release the participant to attend all training as part of the New Work Opportunities program.
details of the off-the-job training component are:
Name of the course first aid work place level ii
Location of training mersey skill training
Training dates tba On-the-job training is an essential element of the New Work Opportunities program. The sponsor has agreed, to provide this in the agreement with DEET. Details of the on-the-job training to be provided which match the participants' needs are:
carpentry plumbing painting basic electrical
Alternative off-the-job training may be considered if the participant has recently completed similar training. Details of alternative off-the-job training are:
first aid work place level ii rpl through tafe for trade recognition tep
6 Annual leave
Participants do not accrue annual leave entitlements. If the sponsor ceases operations during the Christmas period, the sponsor must pay the participant for the days which are not gazetted public holidays. This money must not come from the income support provided by the Commonwealth. Any leave taken must be added to the duration of the project so that the participant has 26 weeks actual participation.
7 Time sheet
At the end of each pay period, the participant must sign a time sheet which is retained by the sponsor for audit purposes. Where possible, this should be the same as that used by employees of the sponsor. If the participant does not attend work experience or training without reasonable grounds, (see leave arrangements) the sponsor is to adjust the amount paid in the participant's next training allowance.
8 Travel arrangements
The project site is 164 stoke st , the participant lives at 16 corari st east devonport
Can the participant use public transport? Yes No ü
Will the sponsor be providing transport? No Yes ü
Fuel Assistance Allowance is only payable when the participant is required to travel more than 20kms each day by private vehicle because there is no other option.
Distance travelled each day kms less 20km equals kms
9 Termination of placement
The sponsor may terminate the placement of the participant with reasonable notice after consultation with the referring case manager and the CES. Termination may be considered if the performance of the participant is unsatisfactory or the nature of the project is unsuitable for the participant.
10 Public liability Insurance
The sponsor is required to maintain public liability insurance to an adequate sum against any loss, damage or injury to any third party caused by the participant in the course of work done while the participant is placed with the sponsor and will indemnify the Commonwealth In respect of any such liability.
11 Personal Injury
All sponsors are required to have workers compensation or injury insurance to cover participants while they are involved in the project.
12 Authorised officer
DEET is to nominate an officer who will be available to visit the sponsor and the participant at any time to assist in resolving any problems or difficulties with the participant or the program generally. If the problem relates to the individual participant the DEET contact officer should be the referring case manager. Problems relating to the program generally are to be referred to the DEET contact officer in the DEET Area office.
13 Privacy conditions
As per the provisions of the Privacy Act 1988, the information contained in this document will only be available to authorised officers of the sponsor organisation, the Department of Social Security and DEET to enable the implementation of the proposed work experience and training.
14 Other duties of the sponsor
The sponsor also agrees to the following:
·to conform to applicable Commonwealth, State and Local Government laws and regulations and other regulatory arrangements governing the activities of the organisation;
·to release participants to attend job interviews without financial penalty and to provide appropriate work experience references to the participant; and
·to ensure participants have access to supervisors at all times whilst on-the-job."
The learned Commissioner determined that the appellant was not a "worker" within the meaning of the Act and dismissed his application.
The appellant has appealed against that determination on the following grounds:
"… the learned Commissioner:-
1 Erred in finding that when the Appellant suffered his injury that he was not a worker within the meaning of that term in the Workers Compensation & Rehabilitation Act 1988 [sic] and of whom the Respondent was the employer;
2 Erred in finding that the arrangement between the Appellant and Respondent was not that of a contract of service;
3 Erred in finding that the arrangement between the Appellant and Respondent was not that of a contract of training;
4 Erred by giving no weight or insufficient weight to the evidence of the Appellant and of Christine Bullen;
5 Erred in dismissing the Appellant's Application;
6 The Appellant reserves the right to particularise and provide further grounds of appeal."
Counsel for the respondent and counsel for the nominal insurer have both raised the preliminary contention that the appeal is not in respect of a "determination order, ruling or direction … in point of law" and is thus incompetent.
As I said in TGIO v McLeod B37/1991:
'Where a right of appeal is limited to the right to challenge errors in point of law, the primary facts found by the tribunal of first instance cannot be impugned upon appeal, provided there is evidence upon which those facts may be found. If the tribunal of fact misdirects itself on matters of law which it is necessary to apply to the primary facts, such an error will support an appeal. If the tribunal does not misdirect itself as to the law it may nonetheless be found to have erred in law if an ultimate finding of fact upon which the case fails or succeeds can be demonstrated as being one which could not be reasonably entertained by the tribunal if it correctly applied the law to the primary facts in a judicial manner.
For the appellant to succeed it is not enough to show that different minds may reasonably have reached different conclusions on these ultimate facts. The appellant must show that the decision was wrong. This is, I think, an important factor to be borne in mind when considering a case such as the present where there is no simple or universal touchstone upon which a tribunal of first instance must rely when attempting to distinguish between a contract of service and a contract for services. Various tests have been propounded in the past but, as has been stressed in recent judgments, eg by Mason J (as he then was) in Stevens v Brodribb Sawmilling Co Pty Ltd (1985-1986) 160 CLR 16 at p29, 'it is the totality of the relationship between the parties which must be considered'."
In most cases where an issue has arisen as to the status of a claimant as a worker, the question has been, was he a servant or an independent contractor and, as many cases, including TGIO v McLeod (supra) and Laird v Shand B55/1996 demonstrate, this is often a difficult matter to resolve and is an issue upon which objective and impartial minds may differ.
In a case such as the present, however, different considerations arise. There is no question whether the appellant was an independent contractor. The question is, was he a worker as defined in the legislation and was the respondent his employer as defined in the legislation. A dichotomy other than that of servant/contractor is involved.
At the time relevant to these proceedings, "worker" was defined in the Act, s3 as follows:
"'worker' means any person who has entered into, or works under, a contract of service or training agreement with an employer, whether by way of manual labour, clerical work, or otherwise, and whether the contract is express or implied, or is oral or in writing, and, used in relation to a person who has been injured and is dead, the term includes the legal personal representatives or dependants of that person or other person to whom or for whose benefit compensation is payable;"
"Employer" was defined by the Act, s3 as follows:
"'employer' means the person with whom a worker has entered into a contract of service or training agreement, notwithstanding that that person may have temporarily lent, or let on hire, the services of that worker to some other person, and includes the Crown, any body of persons (corporate or unincorporate), and the legal personal representative of a deceased employer;"
"Contract of training" was defined thus:
"'contract of training' has the same meaning as it has for the purposes of the Industrial and Commercial Training Act 1985;"
The Industrial and Commercial Training Act 1985, s3, defined "contract of training" as follows:
"'contract of training' means a contract (including an indenture of apprenticeship) under Division 3 of Part III in respect of training in a trade or other declared vocation;"
However, the Industrial and Commercial Training Act 1985 was repealed by the Vocational Education and Training Act 1994. The nice question of statutory construction which this sequence of events may otherwise have posed, appears to me not to arise in the present circumstances simply because on no reasonable view of the meaning of the phrase "contract of training" as employed in the Act, could it be said that the appellant was engaged pursuant to such a contract. A "contract of training" under the Industrial and Commercial Training Act and its statutory successor ("training agreement") under the Vocational Education and Training Act, are very different from the sponsor/participant agreement pursuant to which the appellant was engaged by the respondent.
If, therefore, the appellant is to succeed on the appeal, it must be shown that the learned Commissioner erroneously determined that he had not entered into, and had not worked under, a contract of service.
The learned Commissioner made few findings of fact and made no findings either favourable to, or adverse to, the credibility of any witness. It may therefore be assumed that he accepted the evidence given before him and regarded any conflict between witnesses as attributable to genuine error and, in any event, irrelevant to his determination.
In such circumstances it seems to me that the central question posed by this appeal is a genuine question of law, even though its resolution is dependent upon an assessment of the overall weight of the evidence given (see Halliday v Nevill (1984) 155 CLR 1 at 9).
It was submitted to the learned Commissioner that the participant/sponsor agreement between the appellant and respondent was in the form of a contract of service in that it provided for the duties to be performed by the appellant, the hours to be worked, the rate of payment, the leave entitlements, and there was provision for time sheets, pay slips, tax deductions and superannuation, together with the right of the respondent to terminate the engagement of the appellant. It was submitted that all these factors were indicators of an employer/employee relationship.
In rejecting this argument, the learned Commissioner said:
"The services or labour to be provided by the worker were however to the benefit of a third party and I am not satisfied on the evidence that any benefit was provided from that third party to BEC in respect of the worker's labour or services. BEC received a benefit from the Commonwealth of Australia in respect of providing and arranging the work placement for the worker and this benefit was provided by agreement W1 and was unrelated to the other agreement as to work placement W2. Neither of the contracts provided any arrangement whereby the worker provided a service or labour to a person in return to [sic] for reward or remuneration from that same person. No remuneration was received by the worker from BEC in return for labour or services provided. Therefore I am not satisfied that the primary requirements for a contract of service between BEC and the worker existed in this case."
In my opinion, the conclusions of the learned Commissioner were erroneous and cannot be supported.
The definition of "employer" contained in the Act, s3, clearly envisages that a worker may be lent or hired to a third person without undermining the employer/employee relationship and I regard the fact that the appellant was performing work for Mr Payne of Tas Villas as virtually irrelevant.
Similar issues to those before the Tribunal, and now before the Court in this appeal, have been the subject of decisions by appellate courts in the United Kingdom. In Porton v Central (Unemployed) Body for London [1909] 1 KB 173, the respondent was a body created by statute and empowered to provide work for the unemployed. Under this scheme, the appellant was put to work somewhere in London and sustained an injury by accident. His entitlement to compensation was disputed. When the issue came before the Court of Appeal, Cozens-Hardy MR said:
"The Central Body exists for the very purpose of providing work in proper cases. I have no doubt that they exercised their discretion with propriety and employed Porton because he was a man coming within the class of persons whom they were authorized to employ and they thought it was a reasonable case. Porton, on the other hand, was in no way bound to come to them. He was hard up, no doubt, in the sense that he might have been willing to take work under rather more disadvantageous conditions than he would have done at other times. What has that to do with it ? We have here a document which states the conditions of employment. It is headed 'Central (Unemployed) Body for London.' It states the hours of labour; it states the time allowed for dinner out of those hours; it states the rate of wages per hour, and it states that travelling expenses to a certain extent will be paid if previously sanctioned; then it says what deduction is to be made for lost time. The man accepts the employment; he is employed for a considerable time, and the average wages extending over that time amounted to 18s or rather more per week. We are asked to say that that did not create the relation of employer and workman between the Central Body for London and this man. If it was not a contract of employment I cannot imagine what it was. I know no other words to describe it. It certainly was not charity; it certainly was not poor law relief. Sect 1, sub-s 7, if there were any doubt about it, negatives any such idea. It seems to me to be a plain case in which the Central Body were the employers and the deceased man was a workman within the definitions in the Workmen's Compensation Act."
Fletcher Moulton LJ and Farwell LJ agreed with him.
This case was followed by a unanimous Court of Session, Scotland, in Gilroy v Mackie (1909) 2 BWCC 269 and again in MacGillivray v The Northern Counties Institute for the Blind (1911) 48 SLR 811. The views expressed by the majority judgment in Hopes v Work Cover Corporation [1997] SAWCT 5 are also consistent with this approach.
In my opinion, the appeal should be upheld. The appellant was a worker within the meaning of the Act, and is entitled to benefits accordingly. The appellant's application is therefore referred back to the Tribunal to be dealt with in accordance with this determination.
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